Malloy v. Carroll

• Citation: 287 Mass. 376,191 N.E. 661
• Parties: MALLOY et al. v. CARROLL et al.
• Decision Date: 06 July 1934
• Court: United States State Supreme Judicial Court of Massachusetts

287 Mass. 376

191 N.E. 661

MALLOY et al.

v.CARROLL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

July 6, 1934.

Appeal from Superior Court, Suffolk County; W. A. Burns, Judge.

Suit in equity by John Malloy and others against John Carroll and others. From interlocutory and final decrees, respondents appealReversed and remanded, with directions.

J. B. O'Hare, of Boston, for plaintiffs.

P. A. Hendrick, of Boston, for defendants.

DONAHUE, Justice.

The plaintiffs brought a bill in equity in the superior court to establish and secure their rights as members of the Boston Cement and Asphalt Finishers' Union Local No. 534, a voluntary association hereinafter referred to as the union. The defendants as described in the bill are (a) four named persons ‘and other persons too numerous to be mentioned, purporting to be officers and members' of that union; (b) four named persons ‘individually and as they officers and members of the Building Trades Council of Boston and Vicinity, a voluntary association’ the members of which are too numerous to be set forth herein and (c) three named persons individually and ‘as they are officers and members of the Operative Plasterers and Cement Finishers International Association of the United States and Canada.’ An answer was filed by the four persons named in the first group of defendants ‘for themselves and in behalf of the officers and members' of the union; by the United Building Trades Council of Boston and Vicinity and by the Operative Plasterers' & Cement Finishers' International Association of the United States and Canada. The case was referred to a master and after the confirmation of his report a judge of the superior court made an order for the entry of a final decree which provided that the defendants be restrained from interfering with the plaintiffs in the enjoyment of their rights and privileges as members of the union and reported the case to this court upon a stipulation that, if he was warranted in ordering the entry of such a decree, that decree should be entered; otherwise a decree was to be entered dismissing the bill. The rescript from this court was ‘Decree to be entered as ordered.’ See Malloy v. Carroll, 272 Mass. 524, 172 N. E. 790.

Thereafterwards an interlocutory decree was entered in the superior court which ordered that the plaintiffs be restored as members of the union in good standing ‘upon payment of any and all unpaid dues outstanding against them individually as of the date of May 11, 1928, according to schedule annexed’ and provided that any plaintiff who failed to pay such dues on or before May 1, 1931, should forfeit his rights to restoration to membership. By the decree the plaintiffs were ordered to discontinue any independent organization conducted by them and refrain from holding themselves or such organization out to the public as the union; the defendants were restrained from interfering with the plaintiffs in the enjoyment of their rights and privileges as members of the union. The case was recommitted to a master to hear the parties and their witnesses and report to the court the amount of damages, if any sustained by the several plaintiffs by reason of the unlawful acts of the defendants and the amounts, if any, owed by the several plaintiffs to the union for dues, assessments and fees from May 11, 1928, up to the date of the decree which was November 21, 1930, and to state the account between the several plaintiffs and the defendants.

The master filed what is hereinafter referred to as the first report in which he found the amount of damages sustained by eighteen of the plaintiffs because of wrongful acts of the defendants in interfering with the employment secured by certain of the plaintiffs and in orally or in writing publishing of the plaintiffs that they were ‘scabs' or that they were non-union men. Objections to the report were filed both by plaintiffs and by defendants. Certain of the objections of each were sustained and others were overruled. The plaintiffs and the defendants filed motions to recommit the report. The defendants' motion was denied and the plaintiffs' motion was allowed in part. The purposes of the recommittal as stated in an interlocutory decree were (a) to determine the amount of damages sustained by the several plaintiffs by reason of the loss of rights and privileges as members of the local and international unions during the period from May 11, 1928 (when the plaintiffs were excluded from the defendant union) and November 21, 1930 (when the decree ordering their reinstatement as members was entered) and to report the amount so found if the damage for such loss exceeded the amount of $300 found as an item of damage to each of the eighteen plaintiffs for anguish of mind in the first report; (b) to strike from the report the amounts found to be due from the several plaintiffs to the union for dues, assessments and fees from May 11, 1928, to November 21, 1930 (which amounts the master had in his first report deducted from the amount of the damages he found for the plaintiffs); (c) to strike from the report the amounts found by the master to have been paid by the several plaintiffs for the support of the independent organization which they conducted during the period of their expulsion from the defendant union; (d) to determine the amount of damages sustained by four of the plaintiffs by reason of loss of earnings due to unlawful interrerence by the defendants from May 11, 1928, to November 21, 1930, ‘by subtracting the amount earned by [each such] * * * petitioner in this period from the average earnings of a cement finisher, to wit, $4,048.49, as determined by the master’ in the first report.

The master filed a second report and objections filed thereto by the defendants were overruled. The defendants seasonably claimed an appeal from every order or decree adverse to them including the final decree. This among other things ordered that ‘judgment be entered against the respondents' in favor of each of eighteen named plaintiffs for various stated amounts as damages and for stated costs and ‘that execution issue therefor’ to each of those eighteen plaintiffs.

It is convenient in the consideration here of the questions argued to follow the order in which they appear in the defendants' brief.

1. The defendants contend that the plaintiffs are entitled to recover no damages at all because from a time shortly before their wrongful exclusion from the union on May 11, 1928, until their reinstatement by decree of court on November 21, 1930, they united in an organization of their own, maintained headquarters, elected officers and generally held themselves out as Union No. 534. These facts did not prevent the plaintiffs from receiving relief through an injunction restoring them to membership in the union (Malloy v. Carroll, 272 Mass. 524, 172 N. E. 790) and they do not bar the further relief of money damages. The wrongful deprivation of the advantages of membership in the defendant union did not require them passively to forego such advantages as might be gained from an independent organization of their own. Most of what the plaintiffs did was forced upon them by the wrong of the defendants. The plaintiffs' acts did not increase the amount of damages resulting from the defendants' wrong; on the contrary, since the independent organization assisted them in procuring employment the amount of the damages which the defendants must now pay for that wrong was lessened.

2. By an interlocutory decree entered in this case on July 27, 1929, the defendants were restrained from ‘interfering with the petitioners in the performance of their usual trade and * * * influencing persons likely to employ the petitioners not to employ them. * * *’ The defendants contend that because there has been no adjudication that the defendants were in contempt for violations of that decree in no event should damages be found for any period later than that date. We see nothing in that contention. Not only might there have been acts violative of that decree which were not prosecuted as contempts but wrongful acts done before that date might have had a continuing effect long after the decree was entered.

3. Following the mandate of the decree recommitting the case to the master after the filing of his first report, he struck out therefrom the amounts which he had found due from each plaintiff to the union for dues, assessments and fees accruing or levied during the period between May 11, 1928, and November 21, 1930, during which time the plaintiffs were wrongfully excluded from membership in the union. He had found these amounts in accordance with the direction in the earlier decree referring the case to him for the assessment of damages and in his first report had deducted them from the amounts found by him as the damages sustained by the several plaintiffs. In each report one item of damages found by him was the loss of earnings by the plaintiffs due to the wrongful acts of the defendants. In the second report in obedience to the decree of recommittal he found the amount of damages sustained by the plaintiffs by reason of the loss of their rights and privileges as members of the union of which the defendants had deprived them for the period of over thirty months. The general theory of damages applied was that the plaintiffs should by the award of damages be put in the same position as if the wrongful acts of the defendants had not been committed and the plaintiffs had remained recognized members of the union. If the plaintiffs had been permitted to remain during the period in question recognized members of the union they would have been obliged to pay the union charges for the rights and privileges incident to such membership. By the final decree they are given damages for the loss of those rights and privileges and also for any loss in earnings sustained through the wrongful acts of the defendants computed on the basis of...